European judge probes Microsoft antitrust case

Microsoft and the European Commission faced probing questions
on Thursday from a European judge reviewing the remedies ordered in the Commission's antitrust decision.

Bo Vesterdorf, president of the Court of First Instance, is hearing the software giant's appeal of the Commission's order to share technical information with rivals and provide a Windows version without the media player.

During the first day of a two-day hearing, Vesterdorf asked pointed questions of both parties--delving into whether Microsoft would suffer irreparable harm if it shared technical information with rivals. He also zeroed in on whether the Commission had made its case that Microsoft's dominance in one defined market is being used to stifle competition in a secondary market, according to people at the hearing.

"He seemed quick at picking things up and persistent in asking questions he felt people were dodging," said Georg Greve, president of the Free Software Foundation Europe, a trade group for open-source software that gave testimony on behalf of the Commission.

The industry is closely watching the hearing because Vesterdorf's decision will have wide-ranging repercussions throughout the tech industry--from giving developers and computer makers the option of using a Media Player competitor to providing the legal means to purse the unbundling of other software.

If Vesterdorf rules in the Commission's favor, Microsoft will have to comply with the panel's order immediately. If he rules in Microsoft's favor, the software giant will not have to share information or strip the media player from Windows unless it loses a trial, which could take two years.

Parties in the case said it was difficult to gauge which way Vesterdorf is leaning after the first day of the hearing, but most said he appeared to be well-prepared.

"He has a good grasp of the technical issues of the case and spent a lot of time reading the summations from the parties and asking them questions over the past two weeks," said Lars Liebeler, an antitrust attorney for the Computing Technology Industry Association (CompTIA), which is supporting Microsoft in the case.

Microsoft held a similar view, according to Brad Smith, Microsoft's general counsel.

"It is clear that the court has identified the key issues at the heart of this case," Smith said in a statement. "The exchanges in the afternoon session revealed some fundamental weaknesses in the Commission's case involving interoperability. We are looking forward to tomorrow, when the issues will move to the Windows Media Player."

The first day was devoted to the issue of interoperability with Microsoft's operating system with other products and the second day, Friday, will focus on the Media Player.

Although the European Commission declined to comment on the hearing, third parties addressing the court on behalf of the Commission or Microsoft assessed the day's events.

"(Vesterdorf) asked Microsoft how it would be irreparably harmed if it disclosed its intellectual property. Although Microsoft did not have specific information here, they did say that once confidential information is released, you can't make it confidential again," Liebeler said.

Greve said Microsoft tried to step around the issue of its dominance in the client-server market. "They were trying to dodge how they wanted to take that monopoly to the workgroup server market," he added.

The hearing began with the parties issuing opening remarks for an hour, which also included their expert witnesses and testimony from representatives within their organizations. That was followed by 30 minutes of testimony from third parties who had filed to intervene in the case. The afternoon session ran about four hours, with the judge asking questions of the parties.

Vesterdorf will resume court on Friday morning and is expected to follow a similar format. A ruling in the matter is expected to come in weeks or months.